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Opinion Article:

Disputed Zimbabwe elections cry out

for mediation

 

This piece explains why Courts cannot resolve election dispute

 

Mediation – not litigation – needed now

 

Nelson Chamisa is proposing to challenge the election results through the courts: a very noble, and proper step for a lawyer to undertake - the Rule of Law correctly utilised and enforced. It is the characteristic response of a lawyer: resolve disputes by going through the courts and allow the Judge to decide.

 

But in Zimbabwe’s case, it is unreservedly futile, and, in the present circumstances, positively and dangerously counter-productive. The last thing Zimbabwe needs now is an imposed resolution – one that is imposed forcibly upon unwilling parties, particularly by a Judge almost certainly tainted by the old Zanu-PF party regime.  The legal challenge involves asking one person - a single Judge, and possibly one or two more if it goes to Appeal - to decide the outcome of possibly one of the most critical issues in the history of Zimbabwe. If Chamisa is the loser, he will have ample grounds for further challenge.  How can any Judge hearing this case be regarded as neutral, independent, and totally unbiased? The judge is bound to have strong links with the previous regime and is likely even to have been appointed by Mnangagwa (and so will be indebted to him).  He will almost certainly have been educated and trained under the old regime. This leaves wide open the opportunity - to Chamisa if he is the loser – to regurgitate the allegations of bias, collusion, dirty tricks, fraud, manipulation, and other skulduggery.

Meanwhile, Mnangagwa as the court winner, will rejoice, feeling doubly vindicated, having been provided with further legal authority, and a yet stronger legitimate mandate, to govern.

 

So what next?

 

Is it realistic to expect either party to accept the decision gracefully and to abide peacefully by it?  If Chamisa is the loser in court, is it likely that the entire body of followers, supporters and all the 2.14 million who voted for him – will take the judgment lying down?  Or if Mnangagwa is the loser, can we expect him and the 2.46 million who voted for him – including the all-powerful Army generals - to ab ide by and enforce the court ruling?  And if the Judge’s decision is to order fresh elections, how would this achieve any different set of circumstances than the previous election?

 

Appeal?

 

Either Zanu-PF and the MDC, is bound to take it to a further appeal This time two, three, maybe five or more Judges, will reconsider, not only the validity of the election results, but also the accuracy and legal correctness of the lower court’s Judgement.  The waters will have been yet further muddied.  The Appeal Judges will once again impose forcibly their decision upon one unwilling party. Why should either party accept this decision any more than they have taken the decision of the electorate or that of the previous Judge? And so it will go on, endlessly without making any progress towards a peaceful resolution. In the meantime, the winner will have felt further vindicated and reinforced in his interpretation, whilst the loser will feel even more acutely bitter at being the victim of a gross injustice.   All these factors simply create more deeply entrenched and rigid positions, rendering it more difficult - if not impossible - for any compromise solution to be found later. For indeed it is a mediated consensual mutually-agreed solution that is necessary here – an imposed solution will never be accepted, nor can it endure. This is a perfect case and environment for mediation.

 

What can a Mediator do?

 

[References to a single mediator will include the plural, male as well as female, and is intended to encompass the probability of a team of international mediators, possibly headed by senior lead mediator]

 

The Mediator, as he will have been trained to do, will encourage Zanu-PF and the MDC negotiators to concentrate their energies on looking to the future, rather than wallow in the past and dwell on historic grievances.  The mediator can enable the parties to ‘separate out the problem from the people’.  This concentrates the minds on making the problem the joint enemy – rather than each other. It will be particularly pertinent in Zimbabwe’s case, where old injustices and resentments need to be cast aside, and a political solution is demanded.  It may be that some form of coalition or power sharing will be the solution, but whatever it is, it will involve a co-operative and collaborative approach rather than anything adversarial or confrontational – and certainly not a contentious judge-imposed resolution!

 

How can the mediation process work?

 

Mediation is an entirely flexible and informal process.  Zanu-PF and the MDC can be placed in separate rooms with the mediator spending time in each room, discussing privately – and confidentially – with each, and then shuttle between the two rooms.  Alternatively, the parties can start immediately around the table and if necessary separate at any later stage. It is entirely up to the parties in consultation with the mediator, and the process often involves a continual mixture of both formats: joint and separate meetings.

 

The correct parties at the table

 

The first task of the mediator will be to ensure that all necessary, relevant parties and stakeholders are present and represented at the mediation – and ideally that they each have the authority to reach a binding agreement.  Securing the attendance of the parties and getting the mediation off the ground will itself be a difficult and challenging process: Mnangagwa and Chamisa will be in an extremely raw emotional state, suspicious of every proposal put forward by the other side. They will argue as to

  • who should or should not participate
  • the appropriate venue
  • the dates of the first and subsequent meetings
  • the ‘ground rules’
  • pre-conditions

 

Once the mediation is underway, it will understandably be a complex and protracted process, – possibly taking weeks and months of meetings and negotiations, in both separate and joint sessions.  It would be hoped that by the time the mediation takes place, both Mnangagwa and Chamisa will have come to the realisation that a form of resolution by mutual consensual agreement rather than stipulation or imposition by one party upon the other, is the only hope for a way forward.

 

Reaching Consensus

 

Building an environment in which Zimbabwe can be a strong unified nation again should be the joint aim of all at the mediation.  This is the mediator’s strongest card:  Zanu-PF and the MDC negotiators can be constantly reminded that this is their last chance to avoid years of hostility and bloodshed.  This will need to be tackled collaboratively, with a sizeable amount of give and take, swallowing of pride, and retreats from long-held firm positions. Red lines may need to be crossed, seemingly over-generous offers and concessions made and reciprocated – all in the name of future peace, harmony and a co-operative partnership.  The enormity of this task and the difficulties involved cannot be underestimated.  It will be arduous, painful, frustrating, and exasperating: there will be steps forward only to be dashed by several steps backward; there will be walk-outs, heated exchanges, even tears and potential exchange of blows.  But at each stage, Zanu-PF and the MDC can be urged to concentrate on their joint aim: to rebuild a strong, unified and prosperous nation.

 

Both Mnangagwa and Chamisa are bound to approach the mediation with very fixed and rigid positions, each in the unshakeably firm belief that they are in the right, namely that they were in fact the winners of the election: any allegations to the contrary constitute an aberration, an insulting attack upon their credibility and integrity. The positions of Zanu-PF and the MDC are diametrically contradictory, each wholly incapable of conceiving that there is an alternative argument or case to theirs.  Mnangagwa’s and Chamisa’s respective aims – and their primary purpose in coming to mediation – is likely to consist of one final determined effort to prove they are right – even if only to the mediator. Mnangagwa and Chamisa will try to gain yet further vindication and endorsement by the mediator, to strengthen their positions.  Clearly both Zanu-PF and the MDC cannot achieve this simultaneously.

 

The ‘Empirical Evidence’

 

Both parties claim they have “ample and a substantial body of empirical evidence” to prove that they are in the right.

Mnangagwa claims that:

  • “These were free and credible, and a celebration of democracy. They were open to the world….”
  • Zanu-PF  secured 50.8 percent of the vote, while his main rival Nelson Chamisa, of MDC won 44.3 percent, according the chair of  the Zimbabwe Electoral Commission….results released showed Zanu-PF winning almost 70 percent of the legislative vote.
  • “We delivered a free, fair and credible election as promised,”
  • He received important, international endorsement of his win from the Chinese government, which had invested hugely in Zimbabwe. A Chinese government statement said: “as a friendly nation to Zimbabwe we call upon relevant parties to put the interest of the country and the people first and respect the choice made by the Zimbabwean people.”
  • He received further support from Cyril Ramaphosa, recently-made President of South Africa, where a government spokesman called Mr Mnangagwa to “express his commitment to working closely with the president-elect to enhance the historical‚ political and fraternal relations which exist between South Africa and Zimbabwe”.
  • He (assuming he won in the Courts) received yet further vindication by virtue of the legitimacy of a court judgment.

 

Chamisa’s claims:

 

  • that he is ‘certain of victory and that any other outcome could only be the result of vote-rigging by Zanu-PF’.

 

  • "As far as we are concerned this presidential result is fraudulent, illegal, illegitimate, and characterized by serious credibility gaps and some serious legitimacy issues that we feel must be raised,"

 

  • that his party were the real victors, with its tallies showing it had won 56 percent of the vote and promised to mount a court challenge to the outcome.

 

  • the process was “fraudulent, illegal, illegitimate” and constituted “a coup against the will of the people……We have so much evidence to show how this election was rigged.”

 

  • “Losers (referring to Mnangagwa) must never masquerade as winners and try to be magnanimous. We won this election. An offer from a person who cannot give an offer is nothing. He can’t be Father Christmas when he is not the author of Christmas

 

  • “We will challenge this declaration in the courts of law, courts of public opinion and court of international opinion which is why we are asking the UK to help us liberate ourselves from the jaws of tyranny.”

 

  • That the integrity of the election was also “found lacking” by the Zimbabwe Election Support Network, a local association deployed about 6,500 election observers.

 

  • Zimbabwe Electoral Commission (ZEC) of colluding with ZANU-PF and Mnangagwa, and routinely declared that he would not accept an outcome that was short of victory

 

Mnangagwa and Chamisa, and their lawyers, could readily be forgiven for believing that they are entering the mediation from an unassailable position.  This makes compromise and the process of ‘give-and-take’ less viable, as it renders each party less willing to compromise unduly.

 

The Zimbabwe National Army (ZNA)

 

There will be a plethora of demanding, problematic and challenging issues requiring agreement for a political solution. Perhaps the most multifaceted and convoluted will be that of the Army.  Given the amount of power wielded by the Army and its crucial role in ‘maintaining internal security’ - as well as its potential involvement any future administration, it may need to be given separate and special consideration, both in this article and at the mediation.

 

The ZNA is the primary branch of the Zimbabwe Defence Forces responsible for land-oriented military operations. It is a central element of, and the largest service branch under the Zimbabwean Joint Operations Command (JOC).  It has a total force of military personnel well in excess of 50,000 and falls under the ultimate authority of the President of Zimbabwe and is directed by the Army Chief of Staff.

 

One factor which will add to the difficulties of mediation with the ZNA is the army's slaughter of more than 15,000 civilians in the southern province of Matabeleland in the early 1980s. Mnangagwa was Mugabe's point man in the operation. It is understood that Dumiso Dabengwa, President of the opposition Zapu party, is likely to seek public Mnangagwa’s acknowledgement of the slaughter, as well as a public apology; and reparation in the forms of clinics, schools and boreholes.

 

Public acknowledgments and public apologies are always difficult, and if these remain deal-breakers, mediators spend much time at mediations attempting to hammer out wording that is acceptable to both sides. Apologies are theoretically the cheapest, swiftest, and most effective means of resolving disputes, yet they are invariably the most difficult to extract from any party.  So it becomes necessary to frame them in subtle ways, and draft a formula of words that does not involve complete humiliation or capitulation. Reparations may also be offered in many forms, and if in return for reciprocal benefits, can more readily be ‘sold’ to the followers. In any event, such issues are ‘bread and butter’ for experienced mediators!

 

The Golden Bridge

 

It is here that the mediator might introduce the concept of the “Golden Bridge”.  This comes from Szun Tzu, a 6th century BCE Chinese military strategist:  in his treatise “The Art of War” he counselled that a wise conquering general should build a ‘golden bridge’ upon which his defeated enemy could retreat with dignity. The mediator can assist both Zanu-PF and the MDC to construct such a bridge, particularly in relation to the ZNA, providing parties with a dignified exit route, should they look for an opportunity to climb down, retreat, or make concessions without losing face.

 

Hopefully through this process the ZNA and the Generals can come away feeling that they have achieved something, and that they do not leave the mediation table continuing to feel humiliated, overpowered or crushed

 

It is quite clear that Mnangagwa has been unable to reign in the Army, and he lacks the authority to control the security forces.  This will impact upon Zimbabwe’s international rehabilitation, for any hint of military involvement in politics will impede inward investment. Any attempt to impose severe restrictions upon the Army and unduly curtail its power may undoubtedly be counter-productive and lead only to future conflict.  This can be fully discussed by Mnangagwa and Chamisa, either around the table or separately, in order to attempt - eventually and possibly after several weeks of hard negotiation - – to find a mutually acceptable compromise. It may be necessary to award the Army generals greater powers and privileges that would – in other circumstances - be seen as incongruous and objectionable, all in return for securing firm safeguards to ensure these powers and privilege are not abused.  Both parties will need to understand and acknowledge that

  • this is in the overriding interests of Zimbabwe as a whole, for the sake of the future unity of the entire country
  • it is a problem that will be faced by the entire population on both sides of the divide
  • the harmony and contentment of the Army generals, and peace and calm amongst the population - all visible to the outside world, will be fundamental for the encouragement of direct inward investment.

 

The other issues

 

Similar criteria will apply to handling and reaching consensus on other issues such as corruption, salaries, credit and other for SME’s.  Both Mnangagwa and Chamisa will be acutely aware that a mutually accepted consensus needs to be achieved in tackling these testing and delicate issues – if only to demonstrate to the international community that these issues are being seriously addressed in a collaborative manner. The unpalatable and painful decisions will need thereafter to be ‘sold’ to the entire population – to the followers of Zanu-PF as well as the MDC – and they will be more tolerable and readily acknowledged if they are shown to have been arrived at mutually and consensually, after lengthy and comprehensive arms-length negotiations, and in the overriding interests of the prosperity of Zimbabwe as a nation re-born.

 

Conclusion

 

It is almost impossible to fathom the reasoning behind Chamisa’s decision to take the matter before the courts.  It is inconceivable that either party will be willing to comply with or enforce any court judgment that goes against them.    Most litigation tends to divide parties yet further, leaving them more deeply entrenched in their positions, more bitterly divided, and more hostile towards each other.  Following litigation, this dispute will continue endlessly. It is likely to escalate into further violence on the streets, armed conflict, and even civil war.  so end this dispute with any degree of harmony and consensus

 

Even If issues cannot be fully resolved, and a mediated settlement seems beyond reach, systems and arrangements can be put in place for ongoing future discussions, and pathways agreed for continuing dialogue.  If the international community perceives that hope remains alive for peace in Zimbabwe, direct international investment may start to flow into the country, helping to develop the businesses of manufacturing, mining, agricultural and other SME’s, so vital to the country’s rehabilitation. When the bulk of the population begins again to feel the benefits of prosperity, an atmosphere of peace and reconciliation, the essence of Archbishop Desmond Tutu’s Ubuntu ideologies, can be exist again in Zimbabwe.

 

Zimbabwe now needs mediation – not litigation!

 

Paul Randolph

 

Paul can be reached at

www.tutufoundationuk.org/

www.regents.ac.uk

www.civilmediation.org/

www.fieldcourt.co.uk

 

 

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